Muslim Divorces Without Shariah Can Get Tricky

(RNS) New Jersey lawyer Abed Awad has been involved with more than 100 cases that involved some component of Shariah, or Islamic law, and knows firsthand how complicated things can get.

In one of those cases, a woman claimed she was married to a man according to Islamic law in her native west Africa. The man asserted there was no valid marriage, leaving a judge to decide whether the two were ever legally married in the first place.

If the judge rules they were married, there will be a divorce and she will receive alimony and a share of marital assets. If the judge rules that there is no marriage, then the woman will be left with nothing from her relationship.

To make a ruling, the judge will need to consider what Shariah, as understood in one corner of western Africa, says about what constitutes a legal marriage. He will likely have to consult Islamic law experts and apply what he learns to his decision.

But what if American judges were prohibited from considering Shariah and other foreign laws, as many state and national politicians want to see happen?

"How can I bring in testimony of Shariah generally, or Shariah as the law of a foreign country, when it comes to marriage? The judge won't be able to adjudicate the case," Awad explained.

"He can't say yes or no because now it becomes, is he going to apply New York law or New Jersey law on the validity of a marriage that did not take place here but that took place in a foreign country?"

Such a ban, said Awad, would strip judges of their ability to fully and fairly consider such cases, and deprive Muslims of their right to marry and divorce according to their religious beliefs.

Counselors and activists estimate that roughly one in three Muslim marriages in the U.S. end in divorce. Many Muslim Americans who divorce want their marriages dissolved in accordance with Islamic law. That means having dowries and other provisions of marriage contracts enforced, as well as obtaining an Islamic divorce certificate, which imams in the U.S. issue only after a civil divorce has been finalized.

"We recognize the jurisdiction of the U.S. courts," said Suhaib Webb, imam at the Islamic Society of Boston Cultural Center. "We won't issue a divorce unless they bring a certificate from downtown."

"Even for culturally religious people, religion plays a big role on certain occasions -- weddings, funerals, and divorces," said Suzy Ismail, a family counselor who has written several books about Islamic marriage and divorce. "They still have that connection to Islam, and they will want to dissolve that marriage Islamically."

There are now six states -- Arizona, Kansas, Louisiana, Oklahoma, South Dakota, and Tennessee -- where state legislatures have passed laws prohibiting judges from considering foreign laws; about 20 other states have tried or are trying to pass similar laws. Such a ban is also part of the Republican Party platform.

Muslim lawyers say the Shariah bans violate the constitutional freedom of religion, right to equal protection, and freedom of contract, and could complicate the task of divorcing couples who were married according to Shariah.

Islamic marriages typically include a marriage contract that usually states the name of the couple, their parents, and a dowry amount. Couples with more assets opt for more detailed contracts, and sometimes even get prenuptial agreements sprinkled with Islamic terminology.

Some judges see the dowry -- money or property that a bride brings to a marriage -- as a simple contract, others as a prenuptial agreement, and others as a strictly religious matter in which they don't want to get involved.

"When a judge says he will not get involved in religious issues, that makes it hard to enforce the dowry provision. The judge will say let your local imam deal with it," said Dalya Youssef, an attorney in New Brunswick, N.J., who specializes in family law. "There's nothing you can do about it."

If a judge does decide to rule on a dowry provision within a marriage contract, he will consider the dowry not as a stand-alone issue, but in relation to all of a couple's assets.

For example, if a divorce is between two recent college graduates making $40,000 per year, but the dowry is $100,000, a judge would likely see paying the full dowry as unreasonable. On the other hand, if a divorce is between a couple married for many years, with children, and the husband is worth $100 million, a dowry of $100,000 would be too small.

Such nuances are lost on both critics and advocates of Shariah, said Awad.

"Everybody misses the point," he said. "It's about fairness. It's not about Shariah. It's about to what extent is there fairness at the dissolution."

The fairness principle should also apply in custody cases. In another case Awad was involved in, a state judge declined to recognize a Syrian court order that would have transferred the custody of a child to her father because the mother got remarried. The judge decided that remarriage was not a good enough reason to transfer custody.

This example, Awad said, shows that U.S. judges consider Shariah only if it is consistent with U.S. law.

There is one New Jersey case, S.D. v. M.J.R., that anti-Shariah critics point to as evidence that Shariah is threatening the American legal system. "It's more than a simple red herring," said Awad.

In that case, a wife sought a restraining order against her husband, alleging that he repeatedly beat and sexually assaulted her.

At the trial, the husband presented an imam who testified that, in Islam, husbands have the right to expect sex whenever they want. The judge concluded that because the husband had no criminal intent and was only following his religious beliefs, there was no crime, and did not grant the restraining order.

The ruling was wrong under both Shariah and New Jersey law, lawyers said; a New Jersey appellate court reversed the decision in 2010.

Most Islamic legal experts have said that husbands have no right to expect sex whenever they want, and said the judge erred on U.S. law by basing his ruling on the intent of the husband, and not on whether the wife was assaulted.

"It's not about the rapist's mindset, it's about the victim's mindset. If she doesn't want it, if she says no, then its rape," said Youssef. "The real issue is that the judge was wrong on the law altogether. It's unfortunate that Islam was in the middle of that."

(This story was made possible by a fellowship from the French-American Foundation-United States as part of the Immigration Journalism Fellowship.)